Stark v. Cooper

• Decision Date: 17 January 1920
• Docket Number: No. 2547.,2547.
• Citation: 217 S.W. 104,203 Mo. App. 238
• Parties: STARK v. COOPER.
• Court: Missouri Court of Appeals

217 S.W. 104

203 Mo. App. 238

STARK v. COOPER.

No. 2547.

Springfield Court of Appeals. Missouri.

Rehearing Denied December 6, 1919.

January 17, 1920.

Appeal from Circuit Court, Dent County.

Action by Charles B. Stark against Elizabeth B. Cooper to determine adverse claims to land. From a judgment for plaintiff, which required payment and discharge of defendant's lien, plaintiff appeals. Remanded for modification, pursuant to instructions.

Chas. B. Stark, of St. Louis, and McGee & Bennett, of Salem, for appellant.

Walter C. Guels, of St. Louis, and Wm. P. Elmer, of Salem, for respondent.

FARRINGTON, J.

This is an action brought by the plaintiff to acquire the title to two tracts of land in Dent county, Mo. The petition is in two counts, which are the same except in the description of the different tracts of land. Plaintiff avers that he is the owner of the land in fee simple, and claims title to it, and that defendant claims some title, estate, or interest in and to the premises, the character of which is unknown to plaintiff, except that it is adverse and prejudicial to his interest. His prayer asks that the court define and adjudge the title and interest of the parties, and determine all rights, claims, interest, liens, and demands whatsoever between the parties, and that there be awarded full and complete relief, whether legal or equitable, and for general relief. The defendant answered each count, admitting that she claimed an interest in the premises described, and then generally denied the allegations of plaintiff's bill.

Plaintiff filed a motion asking that her answer be made more definite and certain, which being overruled, the cause went for trial, and it will not be out of place to dispose of one contention made by appellant here. The law is too well settled to require a citation of authorities that, where a motion filed merely to make a pleading more definite and certain is overruled, and the parties go to trial, the motion is waived.

The facts in the record disclose: That the common source of title to this land was in one Erasmus McGinnis, and that the plaintiff obtained judgment against McGinnis on December 6, 1917, for $23,220. That two days after that time he filed in Dent county, the place where the land in suit is located, a transcript of his judgment, and that on September 3, 1918, he sued out an execution on said judgment. A levy was made on September 10th, and the sheriff duly advertised the land for sale, and plaintiff became the purchaser on November 26, 1918, at the sheriff's sale. The defendant introduced two general warranty deeds, both executed by McGinnis to one Porter. The defendant is a devisee of said Porter, who was then deceased. The consideration in the deeds was $1 and other good and valuable considerations. One of these deeds was dated February 19, 1914, and the other December 21, 1915, both of which deeds were by agreement of the parties thereto withheld from record until October 9, 1918, after the sheriff had levied on the lands and advertised the same for sale, but prior to the date of the sheriff's sale at which plaintiff became the purchaser. The testimony showed that McGinnis, at the time one of the deeds was executed, had borrowed of Porter $550, and at the time of the execution of the other deed the sum of $700, and that the deeds were given as security for the payment of those respective sums. The deeds, while being absolute general warranty deeds in form, were conditional deeds or were equitable mortgages. The defendant executrix inventoried those several sums, including the notes for the sum of $550 to $700, and recited that said notes were secured by said deeds but that the deeds were not recorded. The inventory was filed on October 23, 1916. The defendant knew the deeds had not been recorded, and there is some testimony that she had an agreement with McGinnis not to record them until McGinnis gave his consent thereto. The evidence further shows that on May 16, 1917, defendant filed a suit against McGinnis, declaring on five notes executed by him, and among them were the two notes of $550 and $700, to secure which the two deeds had been given. McGinnis signed a stipulation that the total amount due on said five notes was $7,642.44, and judgment was rendered' therefor on November 30, 1917, and the indebtedness, which had theretofore been evidenced by five promissory notes, two of which were secured by the deeds heretofore referred to, was, on the rendition of this judgment, evidenced by the judgment for the total or gross sum. An execution was issued on this judgment and delivered to the sheriff of Dent county on December 13, 1917, which was five days after the transcript on plaintiff's judgment had been filed in that county. A levy was made and the land advertised, but before the date set for the sale the defendant discharged the levy and recalled the execution. The execution ran, for the total amount of defendant's judgment against McGinnis; that is, $7,642.44.

From the evidence it further appears that on May 12, 1910, McGinnis had given to plaintiff his note for $18,500, secured by a deed of trust on some property in Denver. Default in the interest was made in 1913, and plaintiff began to press McGinnis for payment of the principal. A note was given by McGinnis to plaintiff for past-due interest. There is testimony that the plaintiff was told by McGinnis that he owned this Dent county land free and unincumbered, but there is no proof that the defendant or Porter, under whom he claims, knew that McGinnis was misrepresenting the fact, and there is no proof in the case that after the two deeds were given to Porter, which were in fact mortgages, there was any money advanced by the plaintiff to McGinnis. In other words, the plaintiff is not an intervening creditor of McGinnis; his debt existed, as did the defendant's debt, prior to the execution of the two deeds which were by agreement merely equitable mortgages. The court found that the failure to record the deeds from McGinnis to Porter was not from any fraudulent intent by either party, and that the plaintiff holds title to the land mentioned in both counts of the petition subject to the two deeds held to be mortgages, upon which is due the defendant on the first count $596.70 and on the second count $759.68. A judgment was entered vesting title to the land in the plaintiff subject to said deeds.

The first point made by the appellant is that a judgment should have been entered by the court on the answer of defendant she having made a general denial to plaintiff's allegation that she claimed some interest prejudicial or adverse to plaintiff's interest in the land—citing as an authority for her position the case of Gilchrist v. Bryant, 213 Mo. 442, 111 S. W. 1128. The facts in the case at bar are different from those in the Gilchrist Case, in that the defendant here asserts a claim, interest, or right in the land, whereas in the Gilchrist Case the defendant disclaimed any right.

Appellant further alleges that the agreement to withhold these deeds, which were in fact mortgages, from record for several years, was in law a fraud such as would preclude any rights of the defendant whatever thereunder—citing the case of Bank v. Buck, 123 Mo. 141, 27 S. W. 341. This case is wholly inapplicable here. What is said there with reference to withholding deeds for several years was applicable only to transactions between the record owner of the land and subsequent creditors. The plaintiff here was a creditor of McGinnis, the grantor, prior to the execution of the deeds in question. The same can be said of the cases of Bank v. Doran, 109 Mo. 40, 18 S. W. 836, and State Bank of St. Louis v. Frame et al., 112 Mo. 502, 20 S. W. 620, cited by appellant.

It is held in the case of Bank v. Newkirk, 144 Mo. 473, 46 S. W. 606, that to withhold a deed or mortgage from record is not presumptive of fraud, and in Wall v. Beedy, 161 Mo. 625, 61 S. W. 864, that the burden is on the creditor to show that failure to record was a participation in a fraudulent intent, and to further show that the credit extended was done in reliance on unincumbered title. Clark v. Lewis, 215 Mo. 173, 114 S. W. 604; Sugg v. Duncan, 238 Mo. 422, 142 S. W. 321.

The principal contention made by appellant is that the defendant, having consolidated in one suit the two notes, secured by these two equitable mortgages, together with three other notes, and having obtained a judgment for the total amount, thereby merged all of such indebtedness into one judgment, and thereby waived any right, claim, or lien which she might have had by virtue of these two equitable mortgages—citing the following cases, which hold that, when a judgment is rendered for the indebtedness evidenced by a note, it all becomes merged in the judgment and the note extinguished: Cowgill v. Robberson, 75 Mo. App. 412; Winham v. Kline, 77 Mo. App. 36; Tourville v. Wabash R. R. Co., 148 Mo. 614, 50 S. W. 300, 71 Am. St. Rep. 650; Rice, Stix & Co. v. McClure & Harper, 74 Mo. App. 379. A number of other citations are given, where it is held that the note has lost its force and effect, and that it is drowned in the judgment. Other authorities are cited, holding that the finding by the court or jury of the amount owing on a note is not a part of the judgment, and will not...